Townsend v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: August 17, 2022
• Docket: 3:21-cv-08129
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Keeley Anne Townsend, No. CV-21-08129-PCT-DWL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff challenges the denial of her application for disability and disability 16 insurance benefits under Title II of the Social Security Act (“the Act”) by the 17 Commissioner of the Social Security Administration (“Commissioner”). Plaintiff filed a 18 complaint with this Court seeking judicial review of that denial, and the Court now 19 addresses Plaintiff’s opening brief (Doc. 17), the Commissioner’s answering brief (Doc. 20 18), and Plaintiff’s reply (Doc. 19). The Court has reviewed the briefs and Administrative 21 Record (Doc. 12, AR) and now reverses and remands for further proceedings. 22 I. PROCEDURAL HISTORY 23 On August 16, 2017, Plaintiff filed an application for disability and disability 24 insurance benefits, alleging disability beginning on July 30, 2016. (AR at 13.) The Social 25 Security Administration (“SSA”) denied Plaintiff’s application at the initial and 26 reconsideration levels of administrative review and Plaintiff requested a hearing before an 27 ALJ. (Id.) On December 2, 2020, following several hearings, the ALJ issued an 28 unfavorable decision. (Id. at 13-29.) The Appeals Council later denied review. 1 II. THE SEQUENTIAL EVALUATION PROCESS AND JUDICIAL REVIEW 2 To determine whether a claimant is disabled for purposes of the Act, the ALJ 3 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 4 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 5 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 6 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 7 §404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 8 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 9 step three, the ALJ considers whether the claimant’s impairment or combination of 10 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 11 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 12 found to be disabled. Id. At step four, the ALJ assesses the claimant’s residual functional 13 capacity (“RFC”) and determines whether the claimant is still capable of performing past 14 relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and 15 final step, where she determines whether the claimant can perform any other work in the 16 national economy based on the claimant’s RFC, age, education, and work experience. 20 17 C.F.R. § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 18 An ALJ’s factual findings “shall be conclusive if supported by substantial 19 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 20 the Commissioner’s disability determination only if it is not supported by substantial 21 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 22 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 23 to support a conclusion considering the record as a whole. Id. Generally, “[w]here the 24 evidence is susceptible to more than one rational interpretation, one of which supports the 25 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 26 954 (9th Cir. 2002) (citations omitted). In determining whether to reverse an ALJ’s 27 decision, the district court reviews only those issues raised by the party challenging the 28 decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 1 III. THE ALJ’S DECISION 2 The ALJ found that Plaintiff had not engaged in substantial, gainful work activity 3 since the alleged onset date and that Plaintiff had the following severe impairments: 4 cervical and lumbar degenerative disc disease; fibromyalgia; joint hypermobility 5 syndrome; idiopathic hypotension/hypovolemia/dysautonomia orthostatic hypotension 6 syndrome; and chronic migraine. (AR at 16.)1 Next, the ALJ concluded that Plaintiff’s 7 impairments did not meet or medically equal a listing. (Id. at 18-19.) Next, the ALJ 8 calculated Plaintiff’s RFC as follows: 9 [T]he claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a). She can occasionally push and pull 10 with bilateral upper extremities, and occasionally climb ramps and stairs, but 11 can never climb ladders, ropes or scaffolds. She can occasionally balance, stoop, and crouch, but can never kneel or crawl. The claimant can 12 occasionally reach overhead, and frequently handle and finger. She must 13 avoid bright sunlight, must be permitted to wear sunglasses when outdoors and working with fluorescent lighting. She must also avoid loud noise, 14 extreme temperatures, humidity, wetness, odors, fumes, and hazards, like 15 moving machinery and unprotected heights. 16 (Id. at 19.) 17 As part of this RFC determination, the ALJ evaluated Plaintiff’s symptom 18 testimony, concluding that “[a]fter thorough review of the medical evidence of record, the 19 undersigned establishes some basis for the claimant’s alleged pain and limitations, 20 although the extent of the claimant’s alleged limitations is not fully supported.” (Id. at 20- 21 24.) The ALJ also evaluated opinion evidence from 11 medical sources (two state agency 22 reviewing physicians; nurse practitioner Theresa Dowell; David Saperstein, M.D.; Michael 23 Lokale, D.O.; nurse practitioners Blaine Hendrick, Stephanie Ten Eyck, and Kathleen 24

25 1 The ALJ also found that Plaintiff had various non-severe impairments (“hepatic steatosis; osteopenia; acute gastritis/gastroenteritis; kidney stones and convergence 26 insufficiency” and “anxiety disorder”) and that several other alleged impairments (“chronic fatigue and immune dysfunction syndrome (CFIDS), postural orthostatic tachycardia 27 syndrome (POTS), mast cell activation syndrome, neuropathy and malnutrition”) were not medically determinable. (AR at 16-18.) The ALJ clarified that all of Plaintiff’s 28 impairments, as well as some of Plaintiff’s symptoms arising from her non-determinable impairments, were considered when determining Plaintiff’s RFC. (Id. at 16-17.) 1 Hicks; chiropractors Wayne Bennett and M. Nash; and Karen Lunda M.S., P.T.). (Id. at 2 25-26.) Because Plaintiff does not challenge the ALJ’s analysis with respect to most of 3 these sources (Doc. 17 at 9 n.5), it is unnecessary to provide a fully summary here. 4 Based on the testimony of a vocational expert, the ALJ concluded that Plaintiff was 5 capable of performing her past relevant work as an Enforcement Analysis Specialist, 6 Operational Planning Analyst, Intelligence Ops Specialist, and Principal Specialist Intel 7 Ops. (Id. at 27.) Additionally, the ALJ concluded that various “other jobs . . . exist in 8 significant numbers in the national economy that [Plaintiff] can also perform,” including 9 document preparer, appointment setter, and receptionist. (Id. at 27-28.) Thus, the ALJ 10 concluded that Plaintiff is not disabled. (Id. at 28.) 11 IV. DISCUSSION 12 Plaintiff presents three issues on appeal: (1) whether the ALJ erred when 13 discrediting the opinions of Dr. Saperstein; (2) whether the ALJ erred when discrediting 14 the opinions of PT Lunda; and (3) whether the ALJ erred when discounting her symptom 15 testimony. As a remedy, Plaintiff seeks a remand without further administrative 16 proceedings, other than calculation of benefits, pursuant to the credit-as-true test. 17 A. Dr. Saperstein 18 1. Standard Of Review 19 In January 2017, the SSA amended the regulations concerning the evaluation of 20 medical opinion evidence. See Revisions to Rules Regarding Evaluation of Medical 21 Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). Because the new regulations apply to 22 applications filed on or after March 27, 2017, they are applicable here. 23 The new regulations, which eliminate the previous hierarchy of medical opinions, 24 provide in relevant part as follows: 25 We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical 26 finding(s), including those from your medical sources . . . . The most 27 important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability 28 . . . and consistency . . . . 1 20 C.F.R. § 416.920c(a).2 Regarding the “supportability” factor, the new regulations 2 explain that the “more relevant the objective medical evidence and supporting explanations 3 presented by a medical source are to support his or her medical opinion(s), . . . the more 4 persuasive the medical opinions . . . will be.” Id. § 404.1520c(c)(1). Regarding the 5 “consistency” factor, the “more consistent a medical opinion(s) . . . is with the evidence 6 from other medical sources and nonmedical sources in the claim, the more persuasive the 7 medical opinion(s) . . . will be.” Id. § 404.1520c(c)(2) 8 Recently, the Ninth Circuit confirmed that the “recent changes to the Social Security 9 Administration’s regulations displace our longstanding case law requiring an ALJ to 10 provide ‘specific and legitimate’ reasons for rejecting an examining doctor’s opinion.” 11 Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). Thus, “the former hierarchy of 12 medical opinions—in which we assign presumptive weight based on the extent of the 13 doctor’s relationship with the claimant—no longer applies. Now, an ALJ’s decision, 14 including the decision to discredit any medical opinion, must simply be supported by 15 substantial evidence.” Id. With that said, “[e]ven under the new regulations, an ALJ cannot 16 reject an examining or treating doctor’s opinion as unsupported or inconsistent without 17 providing an explanation supported by substantial evidence. The agency must articulate 18 how persuasive it finds all of the medical opinions from each doctor or other source and 19 explain how it considered the supportability and consistency factors in reaching these 20 findings.” Id. at 792 (cleaned up).3 21 … 22 …

23 2 Other factors that may be considered by the ALJ in addition to supportability and 24 consistency include the provider’s relationship with the claimant, the length of the treatment relationship, the frequency of examinations, the purpose and extent of the 25 treatment relationship, and the specialization of the provider. 20 C.F.R. § 416.920c(c). 3 In her opening brief, which was filed before Woods was decided, Plaintiff argues 26 that the new guidelines “do not abrogate the Ninth Circuit rules” regarding the evaluation of opinion evidence. (Doc. 17 at 13-14.) In her reply, which was filed after Woods was 27 decided, Plaintiff acknowledges that Woods forecloses her position on this point but argues that “[t]he ALJ reasons for rejecting the assessments by [her] treating neurologist and 28 examining physical therapist failed even considering the Ninth Circuit’s abrogation of the specific and legitimate reasons standard.” (Doc. 19 at 5-6.) 1 2. The ALJ’s Evaluation Of Dr. Saperstein’s Opinions 2 Dr. Saperstein issued several opinions regarding Plaintiff. First, in a letter dated 3 May 8, 2019, Dr. Saperstein wrote that Plaintiff had “numerous symptoms that evolve 4 steadily,” including “pain, fatigue, dizziness, headaches, nausea, vision disturbances, eye 5 issues, photophobia, hyperacusis, temperature and vibration sensitivities, GI issues and 6 pain and pelvic pain.” (AR at 1551 [record 46F].) Based on these symptoms, Dr. 7 Saperstein opined that Plaintiff “is clearly disabled and has extensive limitations. She 8 cannot sit for more than 15-30 minutes and requires frequent breaks. She is not able to sit 9 for more than 2 hours in a day. Patient cannot stand for more than 15-30 mins at one time 10 and no more than 2 hours in a day. Pt cannot walk further than 500 yards without rest 11 breaks every 20 mins; limited to no more than 1 hours total in a day without severe pain, 12 subluxations and dislocations . . . . Patent shows inability to work due to the inability to 13 focus due to multiple disabling conditions. Patient must take numerous days for her health 14 as well as to be able to see the many medical providers for her disabling conditions.” (Id.) 15 Second, in a questionnaire entitled “Medical Assessment of Ability To Do Work- 16 Related Physical Activities,” which was completed in May 2019, Dr. Saperstein opined, 17 inter alia, that Plaintiff had “Ehlers Danos Syndrome, Postural Orthostatic Tachycardia 18 Syndrome, [and] Mast Cell Activation,” as well as “severe pain, subluxations, fatigue, 19 cognitive and memory issues, headaches, dizzy, weakness, nausea & more”; that Plaintiff 20 could sit and stand/walk for less than two hours in an eight-hour workday; that Plaintiff 21 could lift and carry less than 10 pounds; that Plaintiff would be off-task more than 21% of 22 an eight-hour work day; and that Plaintiff would need to miss 6+ days of work per month. 23 (Id. at 1571-72 [record 49F].) Dr. Saperstein offered the same opinions in another version 24 of this questionnaire completed in November 2019. (Id. at 1687-88 [record 61F].) 25 Third, in a letter dated August 10, 2020, Dr. Saperstein diagnosed Plaintiff with 26 “Hypermobile Ehlers-danos syndrome,” “Mast Cell Activation Syndrome, Unspecified,” 27 “Postural Orthostatic Tachycardia Syndrome,” and “Chronic Migraine”; stated that 28 Plaintiff’s “medical conditions are complex and her diagnoses have evolved based on 1 symptom presentation, test results, and specific diagnostic criteria”; and opined, inter alia, 2 that Plaintiff’s “interest in, questions about, and attention to her medical conditions appear 3 entirely appropriate” and “I have never witnessed anything that would make me suspect 4 [Plaintiff] has a somatic/somatoform disorder.” (Id. at 2077 [record 86F].) 5 The ALJ deemed Dr. Saperstein’s opinions “unpersuasive.” (Id. at 25.) The ALJ 6 provided the following explanation for this determination: 7 David Saperstein, M.D., completed multiple questionnaires and statement in 8 which he opined she was unable to sustain employment (Ex. 46F, 49F, 61F & 86F). He stated she cannot sit or stand for more than 2 hours and can walk 9 no more than 1 hour a day and that she passes out when standing due to POTS 10 [Postural Orthostatic Tachycardia Syndrome] and can only perform postural activities and use her hands/feet up to 20% a day. Like Ms. Dowell’s 11 opinions, the limitations indicated by Dr. Saperstein are so extreme the 12 claimant would essentially be bedridden and would reasonably display some weakness or atrophy of muscles, yet, the claimant’s strength and gait is 13 normal throughout the longitudinal medical record, with only very intermittent notations of an antalgic gait. Further, the provider’s own limited 14 treatment notes fail to identify any abnormal findings to support such 15 extreme limitations (Exhibit 44F/13-15), but rather demonstrate her reluctance to follow recommended treatment (Ex. 82F). Thus, the 16 undersigned finds these opinions unpersuasive. 17 18 (Id. at 25.) 19 3. The Parties’ Arguments 20 Plaintiff argues that the ALJ provided legally insufficient reasons for discrediting 21 the opinions of Dr. Saperstein. (Doc. 17 at 14-17.) As for the first reason (diagnosis of 22 being “essentially . . . bedridden” inconsistent with other medical records), Plaintiff argues 23 that Dr. Saperstein did not diagnose her as bedridden and that the absence of certain 24 symptoms (e.g., muscular atrophy) in other medical records would not, at any rate, be a 25 valid basis for discounting Dr. Saperstein’s opinions. (Id. at 14-15.) As for the second 26 reason (opinions not supported by treatment notes), Plaintiff contends that Dr. Saperstein’s 27 August 2020 letter identifies Plaintiff’s various “diagnosed medical conditions,” that 28 records and notes from other treatment providers “support Dr. Saperstein’s statements,” 1 and “[t]hat Dr. Saperstein’s own records did not show the findings the ALJ expected does 2 not invalidate Dr. Saperstein’s assessments.” (Id. at 15-16.) As for the third reason (failure 3 to follow treatment), Plaintiff acknowledges that she did not follow one prescribed course 4 of treatment (triptan medication for migraines) but argues that because she “was compliant 5 with all other prescribed treatments” for other conditions, this one instance of non- 6 compliance “does not invalidate the entirety of Dr. Saperstein’s assessments.” (Id. at 16- 7 17.) Plaintiff also notes that she pursued other treatments for migraines. (Id.) 8 In response, the Commissioner argues that the Commissioner “properly found [Dr. 9 Saperstein’s] opinion unpersuasive based on the consistency and supportability factors.” 10 (Doc. 18 at 13-16.) More specifically, the Commissioner states that Dr. Saperstein 11 “frequently noted unremarkable exam findings, including normal gait and strength, and no 12 muscle atrophy indicative of a sedentary and bedridden lifestyle,” which findings “are 13 certainly relevant to Dr. Saperstein’s assertions that Plaintiff is essentially bedridden and 14 can sit, stand, or walk less than 2 hours a day and perform other activities including with 15 her hands only 20% a day.” (Id. at 14-15.) In a similar vein, the Commissioner notes that 16 Dr. Saperstein assigned Plaintiff “a low Beighton score of 3 . . . [which] does not indicate 17 JHS or EDS” and “noted no recurrent joint dislocations or frank instability” and argues that 18 the ALJ thus “reasonably considered Dr. Saperstein’s treatment notes when assessing 19 whether this opinion was persuasive based on supportability.” (Id.) Separately, the 20 Commissioner argues that the ALJ properly discounted Dr. Saperstein’s opinions based on 21 the consistency factor in light of the evidence that Plaintiff refused to follow a 22 recommended course of treatment for her migraines. (Id. at 15-16.) 23 In reply, Plaintiff argues that the ALJ’s first rationale was flawed because “the 24 ability to sit or walk for two hours and stand or walk for two hours in an eight-hour workday 25 does not equate to a finding that [Plaintiff] was ‘bedridden’” and because “the ALJ did not 26 provide citation to the record or a basis in substantial evidence for rejection of Dr. 27 Saperstein’s assessed limitations whether or not they are considered ‘extreme’” (Doc. 19 28 at 6-7); that the Commissioner merely repeats the ALJ’s rationale, which is different from 1 defending it (id. at 7); and that although Plaintiff does “not claim she was compliant with 2 triptan medications” for her migraines, “the ALJ failed to acknowledge [Plaintiff’s] 3 legitimate reasons for her reluctance to take triptans for migraines and failed to 4 acknowledge [Plaintiff’s] efforts to comply with treatment and help herself with regard to 5 all of her other impairments besides migraines” (id.). 6 4. Analysis 7 Applying the new regulations, the Court finds no error in the ALJ’s evaluation of 8 Dr. Saperstein’s opinions. 9 One of the ALJ’s reasons for discrediting Dr. Saperstein’s opinions was that “the 10 provider’s own limited treatment notes fail to identify any abnormal findings to support 11 such extreme limitations.” (AR at 25.) The Court construes this as an invocation of the 12 supportability factor, which is a permissible basis for discrediting a medical source’s 13 opinions. Woods, 32 F.4th at 973 n.4 (contrasting a “supportability finding,” which 14 addresses whether the opinion was supported by “objective medical evidence and 15 supporting explanations” from the source, with an inconsistency finding, which address 16 whether the source’s “opinion was inconsistent with other record evidence”) (citations 17 omitted). 18 The lack-of-supportability finding is supported by substantial evidence. On October 19 19, 2018, Dr. Saperstein met with Plaintiff for 60 minutes and memorialized the meeting 20 in a set of medical notes. (AR 1473-87.) The notes reflect that Dr. Saperstein performed 21 an “objective” evaluation of Plaintiff and recorded various findings. (Id. at 1483-86.) 22 These findings were largely normal. (See, e.g., id. at 1485 [“Motor: There is normal muscle 23 tone and bulk. Strength symmetric and 5/5 throughout all muscles. . . . Gait: Casual, heel, 24 toe and tandem walking are normal.”]; id. at 1486 [“no [r]ecurrent joint dislocations or 25 frank instability, in the absence of trauma. . . . Laboratory testing for mast cell activation 26 syndrome negative.”].) It was rational for the ALJ to construe these normal findings as 27 inconsistent with—and therefore unsupportive of—the opinions that Dr. Saperstein 28 elsewhere expressed. And “[w]here the evidence is susceptible to more than one rational 1 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 2 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 3 Notably, Plaintiff does not appear to dispute that the clinical observations in Dr. 4 Saperstein’s treatment notes fail to support Dr. Saperstein’s opinions—instead, Plaintiff 5 argues that it is unnecessary to a medical source’s own objective findings to support that 6 source’s opinions so long as there are supporting findings from other sources. (Doc. 17 at 7 15 [arguing that “[t]he records”—which are elsewhere identified as records from other 8 medical sources—“support Dr. Saperstein’s statements” and “[t]hat Dr. Saperstein’s own 9 records did not show the findings the ALJ expected does not invalidate Dr. Saperstein’s 10 assessments”].) This argument fails because it conflates the supportability and consistency 11 factors. Woods, 32 F.4th at 793 n.4 (“The ALJ described Dr. Causeya’s opinion as ‘not 12 supported by’ the record, but the ALJ plainly did not intend to make a supportability 13 finding. . . . Rather, the ALJ meant only that Dr. Causeya’s opinion was inconsistent with 14 other record evidence. Although the ALJ’s meaning here is clear from context, to avoid 15 confusion in future cases, ALJs should endeavor to use these two terms of art—‘consistent’ 16 and ‘supported’—with precision.”). Nor does Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007), 17 support Plaintiff’s position. There, the Ninth Circuit explained that “[t]he primary function 18 of medical records is to promote communication and recordkeeping for health care 19 personnel—not to provide evidence for disability determinations. We therefore do not 20 require that a medical condition be mentioned in every report to conclude that a physician’s 21 opinion is supported by the record.” Id. at 634 (emphasis added). But here, the issue is 22 not that Dr. Saperstein only made abnormal clinical findings and observations during some 23 of his examinations of Plaintiff, but not others. Rather, the issue is that Plaintiff has not 24 identified any instance where Dr. Saperstein made abnormal clinical findings and 25 observations that would support his opinions. It was therefore rational for the ALJ to 26 conclude that the supportability factor undermined Dr. Saperstein’s opinions and to 27 discredit Dr. Saperstein’s opinions on that basis. 28 Another of the ALJ’s reasons for discrediting Dr. Saperstein’s opinions was that 1 Plaintiff failed to follow a recommended course of treatment for her migraines. (AR at 2 25.) Plaintiff does not dispute the factual accuracy of this assertion—she simply notes that 3 she followed other treatment recommendations and questions whether a single failure to 4 follow a prescribed course of treatment qualifies as a legally valid basis for discrediting a 5 medical source’s opinion. 6 As discussed in Part IV.C below, the law is clear that a claimant’s unexplained or 7 inadequately explained failure to follow a prescribed course of treatment is a permissible 8 basis for discrediting the claimant’s symptom testimony. It is less clear whether such 9 conduct also provides a valid basis for discrediting a medical source’s opinion. Neither 10 side identifies a Ninth Circuit decision supporting its position on this issue and the Court’s 11 own research suggests that lower courts have reached differing conclusions.4 12 It is unnecessary to resolve this unsettled issue here for two reasons. First, as 13 discussed above, the ALJ identified another legally valid reason, supported by substantial 14 evidence, for discrediting Dr. Saperstein’s opinions. Thus, any error with respect to the 15 ALJ’s other reasons was harmless. See, e.g., Reed v. Saul, 834 F. App’x 326, 329 (9th Cir. 16 2020) (“To the extent the ALJ erred in discounting the opinions of Dr. Cochran because 17 her opinions were based in part on Reed’s self-reports of his symptoms, that error is 18 harmless because the ALJ offered multiple other specific and legitimate reasons for 19 discounting Dr. Cochran’s opinions.”); Baker v. Berryhill, 720 F. App’x 352, 355 (9th Cir. 20 2017) (“Two of the reasons the ALJ provided for discounting examining psychologist Dr. 21 Wheeler’s opinion were not legally valid . . . [but] Baker has not shown these errors 22 affected the ALJ’s ultimate nondisability determination, as the ALJ provided other specific 23 and legitimate reasons for discounting Dr. Wheeler’s opinion . . . . As a result, any error 24 was harmless.”); Presley-Carrillo v. Berryhill, 692 F. App’s 941, 944-45 (9th Cir. 2017)

25 4 Compare Tatyana K. v. Berryhill, 2019 WL 464965, *8 (D. Or. 2019) (“A claimant’s failure to follow a prescribed course of treatment can provide a specific and 26 legitimate reason for discounting a physician’s opinion.”) with Nathan S. v. Saul, 2020 WL 1916175, *9 (E.D. Wash. 2020) (“An ALJ may discredit a claimant’s symptom complaints 27 if the claimant fails to show good reason for failing to follow treatment recommendations. However, the fact that a claimant fails to pursue treatment is not directly relevant to the 28 weight of a medical provider’s opinion. The lack of treatment may be considered as a part of the opinion’s consistency with the record as a whole.”) (citations omitted). 1 (“The ALJ also criticized Dr. Van Eerd’s opinion in part because Dr. Van Eerd did not 2 define the terms ‘mild,’ ‘moderate,’ or ‘severe’ in his assessment. This criticism was 3 improper . . . [but] this error was harmless because the ALJ gave a reason supported by the 4 record for not giving much weight to Dr. Van Eerd’s opinion—specifically, that it 5 conflicted with more recent treatment notes from Dr. Mateus.”). Cf. Carmickle v. Comm’r, 6 Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (“Because we conclude that two 7 of the ALJ’s reasons supporting his adverse credibility finding are invalid, we must 8 determine whether the ALJ’s reliance on such reasons was harmless error. . . . [T]he 9 relevant inquiry in this context is not whether the ALJ would have made a different decision 10 absent any error, it is whether the ALJ’s decision remains legally valid, despite such error. 11 . . . Here, the ALJ’s decision finding Carmickle less than fully credible is valid, despite 12 the errors identified above.”).5 Second, and alternatively, the Court has determined in Part 13 IV.B below that the ALJ committed reversible error with respect to a different issue—the 14 evaluation of PT Lunda’s opinions. This, too, makes it unnecessary to delve further into 15 the sufficiency of the ALJ’s “failure to follow treatment” rationale for discrediting Dr. 16 Saperstein’s opinions. 17 …

18 5 With that said, the Court notes that the ALJ’s final rationale for discrediting Dr. Saperstein’s opinions—that, because Dr. Saperstein had “essentially” diagnosed Plaintiff 19 as bedridden, one would “reasonably” expect Plaintiff’s “longitudinal medical record” to contain evidence of muscle weakness or atrophy, yet the medical record contained no such 20 evidence (AR at 25)—was likely erroneous. Dr. Saperstein did not diagnose Plaintiff as essentially bedridden. To the contrary, Dr. Saperstein opined that Plaintiff could sit, stand, 21 and walk, albeit only for relatively short periods interspersed with breaks. Although Dr. Saperstein’s opined-to physical limitations may have been quite restrictive, they still fell 22 short of portraying Plaintiff as bedridden. Additionally, the ALJ did not provide a sufficient foundation for the assertion that one would “reasonably” expect a patient with 23 Dr. Saperstein’s opined-to limitations to suffer from muscle atrophy and weakness. If Dr. Saperstein had truly diagnosed Plaintiff as being bedridden, perhaps this expectation would 24 be so obvious as to not require a foundation in the record, but that was not Dr. Saperstein’s diagnosis. It is therefore unclear why the ALJ was qualified to opine about the sorts of 25 muscle-related diagnoses that should “reasonably” be found in Plaintiff’s other medical records. Cf. Rawa v. Colvin, 672 F. App’x 664, 667 (9th Cir. 2016) (“[T]he ALJ rejected 26 Rawa’s testimony regarding her debilitating pain because she did not show signs of muscle atrophy in her spine. Without citing any medical finding or opinion in the record, the ALJ 27 opined that ‘muscle atrophy is a common side effect of prolonged and/or chronic pain,’ and concluded that Rawa’s pain testimony was less than credible because she did not 28 exhibit such atrophy. It is beyond the scope of the ALJ’s authority to offer such a medical opinion based solely on his own personal speculation.”). 1 B. PT Lunda 2 1. Standard Of Review 3 As discussed above, because Plaintiff filed her application after March 2017, the 4 ALJ’s evaluation of all of the opinion evidence (including the opinions of PT Lunda) is 5 governed by the new regulations. 6 2. The ALJ’s Evaluation Of PT Lunda’s Opinions 7 On December 18 and 19, 2017, PT Lunda performed a functional capacity 8 evaluation of Plaintiff. (AR at 973.) The results of this evaluation were memorialized in 9 a summary report dated December 19, 2017. (Id. at 973-93.) Among other things, PT 10 Lunda opined that Plaintiff could lift, carry, push, and pull up to 13 pounds for 5% of the 11 day; could sit occasionally with position changes; could stand and walk “on a rare basis 12 and in the occasional category if performed with positional/activity changes allowed as 13 needed although [Plaintiff] will not tolerate fully up to 33% of a work day for either”; could 14 perform elevated work, forward bending, and partial squatting on a rare basis; could climb 15 stairs, limited to two flights twice a day; could occasionally use her hands for gripping and 16 fine motor work; and could not lift below knee level, above crown level, or with one hand. 17 (Id. at 985-86.) 18 The ALJ deemed PT Lunda’s opinions “not . . . highly persuasive.” (Id. at 26.) The 19 ALJ provided the following explanation for this determination: 20 Karen Lunda M.S., P.T., completed a functional capacity evaluation (Ex. 21 25F), after which the examiner opined the claimant could lift, carry, push, pull up to 13 pounds 5% of the day, could sit occasionally with position 22 changes, stand and walk on a rare-occasional basis (up to 33% of the 23 workday) but total time on her feet limited to 1.5 hours as well as limit elevated work, squatting, gripping and fine motor work and no lifting below 24 knee level. The undersigned notes the examination revealed primarily 25 subjective complaints aside from decreased functional strength in the bilateral lower extremities, decreased grip strength, edema at the knees, joint 26 hypermobility in the fingers, knees, and shoulders, and variances in ranges of motion, which is not consistent with the level of limitation indicated by 27 Ms. Lunda. While the undersigned finds it reasonable the claimant does 28 indeed have limitations, those indicated by Ms. Lunda do not align and are 1 inconsistent with the other evidence of record. Thus, this opinion is not found highly persuasive. 2 3 (Id.) 4 3. The Parties’ Arguments 5 Plaintiff argues that the ALJ’s reasons for rejecting PT Lunda’s opinions were 6 insufficient. (Doc. 17 at 17-18.) More specifically, Plaintiff argues that the ALJ’s first 7 reason (“aside from symptoms that confirmed [Plaintiff’s impairments], . . . PT Lunda did 8 not observe any problems”) was circular and does not address supportability or consistency 9 and that the ALJ’s second reason (“inconsistent with the record”) was flawed because the 10 ALJ did not identify the supposedly conflicting evidence and “a reviewing Court should 11 not be countenanced to search through an administrative record to find evidence to support 12 an ALJ’s reasoning.” (Doc. 17 at 17-18.) 13 In response, the Commissioner defends the sufficiency of the ALJ’s reasoning. 14 (Doc. 18 at 16-17.) The Commissioner’s argument is as follows: “Substantial evidence 15 supports the ALJ’s reasoning. As discussed above, the overall evidence of record, 16 including the mostly normal exam findings, the relatively conservative nature of her 17 treatment, and the opinions of agency medical experts in disability evaluation, were 18 inconsistent with, and unsupportive of, Ms. Lunda’s assigned limitations. Notably, the 19 ALJ accounted for any abnormal findings, including Plaintiff’s subjective complaints to a 20 large extent, by restricting her to the most restrictive of all work categories—sedentary 21 work—with additional limitations. Plaintiff’s assertions that the record warranted 22 additional limitations have no merit and this Court should reject those arguments.” (Id.) 23 In reply, Plaintiff accuses the Commissioner of failing to “meaningfully respond” 24 to her arguments concerning PT Lunda. (Doc. 19 at 7-8.) Plaintiff notes that “[t]he 25 Commissioner did not explain the ALJ’s finding that even though PT Lunda assessed 26 findings that were consistent with the record, PT Lunda’s assessment was still invalid. 27 Neither the ALJ nor the Commissioner provided reasons germane to PT Lunda’s 28 assessment for rejecting PT Lunda’s assessed limitations.” (Id.) 1 4. Analysis 2 The Court agrees with Plaintiff that the ALJ provided legally insufficient reasons 3 for discrediting the opinions of PT Lunda. 4 The ALJ’s first proffered reason was that “the examination revealed primarily 5 subjective complaints aside from decreased functional strength in the bilateral lower 6 extremities, decreased grip strength, edema at the knees, joint hypermobility in the fingers, 7 knees, and shoulders, and variances in ranges of motion, which is not consistent with the 8 level of limitation indicated by Ms. Lunda.” (AR at 26.) This is best understood as a 9 concern over supportability. Although a lack of supportability is, in general, a valid basis 10 for discrediting a medical source’s opinion, the problem here is that the ALJ’s 11 supportability explanation is conclusory and not supported by substantial evidence. The 12 ALJ did not identify any clinical observations by PT Lunda that were inconsistent with PT 13 Lunda’s opined-to limitations. Additionally, the ALJ acknowledged that PT Lunda made 14 a variety of abnormal clinical observations related to Plaintiff’s lower extremities, grip 15 strength, knees, fingers, and shoulders that, presumably, could support the opinion that 16 Plaintiff has functional limitations arising from those conditions. The ALJ’s determination 17 of unsupportability was therefore inadequately explained. Cf. Lopez v. Colvin, 194 F. 18 Supp. 3d 903, 915 (D. Ariz. 2016) (“It is true that [the treating physician] notes consistently 19 report a normal musculoskeletal examination, except for bilateral knee pain, general 20 myalgia, and decreased range of motion of the lumbar and cervical spine. But the ALJ 21 does not explain why bilateral knee pain, general myalgia, and decreased range of motion 22 of the lumbar and cervical spine are insufficient to support the limitations assessed in [the 23 treating physician’s] opinions.”); Cervi v. Comm’r of Soc. Sec. Admin., 2022 WL 621765, 24 *3 (D. Ariz. 2022) (“The ALJ fails to meaningfully explain how these findings [from Dr. 25 Rakkar’s own treatment notes] were ‘not substantially consistent’ with Dr. Rakkar’s 26 opinions. . . . This failure is particularly notable because the examinations and treatment 27 notes to which the ALJ refers could plausibly be read to support the limitations Dr. Rakkar 28 found—after all, each of these allegedly inconsistent examinations nonetheless noted back 1 pain and decreased ranges of motion. Without a more substantive explanation from the 2 ALJ . . . this Court cannot find that the ALJ’s discrediting of Dr. Rakkar’s opinions is 3 supported by substantial evidence.”) (citations omitted). 4 The ALJ’s other proffered reason for discrediting PT Lunda’s opinions was that 5 they “do not align and are inconsistent with the other evidence of record.” (AR at 26.) 6 This is best understood as a concern over consistency. Although a lack of consistency with 7 other medical evidence in the record is, in general, a valid basis for discrediting a medical 8 source’s opinion, the problem once again is that the ALJ’s explanation is conclusory and 9 not supported by substantial evidence. The ALJ did not identify any specific piece of 10 medical evidence in the record that contradicted PT Lunda’s opinions. Instead, the ALJ 11 simply offered a non-specific reference to the entirety of the record, which spans over 2,100 12 pages. This is legally insufficient. Cf. Boyd v. Comm’r of Soc. Sec. Admin., 2022 WL 13 3152492, *5 (D. Ariz. 2022) (“[T]his could have been a permissible explanation for why 14 Dr. Tran's opinion was being discounted under the ‘consistency’ factor if the ALJ had gone 15 further and identified specific portions of ‘the record’ that demonstrated a lack of 16 consistency. But the ALJ . . . did not do so. Thus, the reader is left to guess where in ‘the 17 record’—which spans over 1,100 pages—the evidence of the inconsistency might be 18 found. Although the Commissioner again attempts to fill this void in the answering brief, 19 by identifying various medical records that could be viewed as establishing inconsistency, 20 it was the ALJ’s responsibility to identify such records in the first instance. On remand, 21 an ALJ may very well agree with the Commissioner that the cited records establish a lack 22 of . . . consistency, but this possibility does not undermine the conclusion that reversal is 23 required.”) (citations omitted). 24 C. Symptom Testimony 25 1. Standard Of Review 26 An ALJ must evaluate whether the claimant has presented objective medical 27 evidence of an impairment that “could reasonably be expected to produce the pain or 28 symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) 1 (citations omitted). In evaluating a claimant’s pain testimony after a claimant produces 2 objective medical evidence of an underlying impairment, “an ALJ may not reject a 3 claimant’s subjective complaints based solely on a lack of medical evidence to fully 4 corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 5 2005). Instead, the ALJ may “reject the claimant’s testimony about the severity of [the] 6 symptoms” only by “providing specific, clear, and convincing reasons for doing so.” 7 Brown-Hunter v. Colvin, 806 F.3d 487, 488–89 (9th Cir. 2015). 8 2. The ALJ’s Evaluation Of Plaintiff’s Symptom Testimony 9 During the hearing, Plaintiff testified that she is unable to work due to a number of 10 conditions, including migraine headaches and joint hypermobility; that she spends the 11 majority of each day in bed or in a recliner; and that she has no hobbies or anything else 12 that she likes to do for fun. (AR at 56-78.) 13 The ALJ concluded that “[a]fter thorough review of the medical evidence of record, 14 the undersigned establishes some basis for the claimant’s alleged pain and limitations, 15 although the extent of the claimant’s alleged limitations is not fully supported.” (AR at 16 21.) The ALJ then provided various reasons for discounting Plaintiff’s symptom testimony 17 in this fashion. 18 As for Plaintiff’s allegations regarding joint hypermobility syndrome (or EDS), the 19 ALJ identified various test and examination results that suggested that although Plaintiff 20 had “some features of joint hypermobility, often seen in the context of hypermobility 21 syndromes, [she] does not meet the criteria for EDS”—and, thus, Plaintiff has “at least 22 some ability to perform exertional, postural, and manipulation activities” and any 23 limitations could be addressed in the RFC. (Id. at 21-22.) 24 Next, with respect to Plaintiff’s allegations regarding migraines, the ALJ identified 25 the following reasons for discrediting her testimony: (1) “[Plaintiff] elected not to follow 26 the recommendations of numerous providers with regard to migraine treatment”; (2) “while 27 [Plaintiff] has alleged that talking is too strenuous, this allegations are unsupported by the 28 objective and clinical evidence of record, including her ability to speak at length during her 1 hearing”; and (3) and “in July 2020, [Plaintiff] said that she has only one severe migraine 2 headache per year that can last one to two days . . . . She also reported primary stabbing 3 headaches that over the previous four months that ‘are not debilitating’ given that they last 4 seconds once every one to two months.” (Id. at 22.) Thus, the ALJ concluded that any 5 migraine-related limitations could be addressed through the RFC. (Id.) 6 Next, with respect to Plaintiff’s allegations regarding dysautonomia (or orthostatic 7 hypotension syndrome), the ALJ did not seem to discount Plaintiff’s testimony but, rather, 8 stated that given “the limited [alleged] nature of these headaches,” the RFC’s “limitation 9 to sedentary exertion level, limited postural activities, and avoidance of hazards is 10 sufficient to account for the claimant dysautonomic dysfunction.” (Id. at 22-23.) 11 Next, with respect to Plaintiff’s allegations regarding “whole body pain” (or 12 fibromyalgia), the ALJ seemed to accept Plaintiff’s testimony— “given that [Plaintiff] 13 made consistent complaints of fatigue, waking unrefreshed, intermittent constipation and 14 diarrhea, as well as some reports of anxiety and depression consistent with fibromyalgia, 15 the undersigned has found it a severe medically determinable impairment”—and simply 16 determined that the limitations in the RFC “sufficiently account for her fibromyalgia 17 symptoms.” (Id. at 23.) 18 Finally, with respect to Plaintiff’s allegations regarding neck and back pain, the ALJ 19 identified the following reasons for discrediting her testimony: (1) “while [various] 20 imaging studies document some abnormality, there is no indication of central canal 21 compromise nor were there any other objective findings consistent with the level of pain 22 [Plaintiff] has alleged”; (2) “physical examinations with regard to the spine were relatively 23 unremarkable”; (3) Plaintiff’s “treatment history of her neck and back underscore the rather 24 benign findings,” and “[t]he lack of treatment beyond medication for generalized pain 25 suggests that [Plaintiff’s] back and neck impairments are not as disabling as alleged”; and 26 (4) “[t]he frequently normal physical examinations and conservative treatment are not 27 consistent with [Plaintiff’s] assertions that she must stay in bed or in a recliner for the 28 majority of the day, lacks the strength to wash her hair more than a couple times a week, 1 and is unable to perform basic household chores apart from dusting. Indeed, with the 2 degree of inactivity and disability alleged by [Plaintiff], one would expect more significant 3 findings such as muscle weakness or atrophy, abnormal neurological findings such as the 4 loss of sensation, or the need to use an assistive device.” (Id. at 23-24.) 5 3. Plaintiffs’ Arguments 6 Plaintiff argues that the ALJ failed to provide legally sufficient reasons for 7 discrediting her symptom testimony. (Doc. 17 at 20-24.) Plaintiff argues that the ALJ 8 applied the wrong standard (id. at 21-22); merely summarized the medical records without 9 explaining, with specificity, why they were inconsistent with her testimony (id. at 22); 10 placed undue emphasis on her failure to follow a prescribed course of treatment for 11 migraines, which failure was justified by her concern that the prescribed medication would 12 cause blood clots and autonomic dysfunction (id.); improperly faulted her for pursuing a 13 conservative course of treatment without “explain[ing] what other course of treatment the 14 ALJ thought [she] should have had for her impairments” (id. at 22-23); and improperly 15 (and speculatively) provided his own medical opinion as to the symptoms (e.g., muscle 16 atrophy) that would be expected of a person with her limitations (id. at 23-24). 17 4. Analysis 18 Although the Commissioner addresses all of Plaintiff’s criticisms in the response 19 brief (Doc. 18 at 5-12), the Court finds one of the Commissioner’s arguments dispositive 20 and thus does not address the rest. 21 Plaintiff failed to follow various recommended courses of treatment for her migraine 22 headaches. For example, in a clinical note written following a December 2016 visit with 23 Plaintiff, Dr. VanderPluym wrote: “In discussion with [Plaintiff], it appears that she has 24 never tried triptans which are migraine specific acute therapies. I have provided her with 25 a prescription for frovatriptan which is a long-acting but slow-onset triptan . . . . She may 26 also be a good candidate for Botox therapy . . . . In the future, alternative medication trials 27 that could be considered at low doses would include things like Cymbalta or gabapentin 28 . . . .” (AR at 755.) Later, in a clinical note written following a July 2017 follow-up visit, 1 Dr. VanderPluym wrote: “Since last being seen Mr. Townsend reports daily headaches 2 . . . . Patient was prescribed frovatriptan but has not tried it.” (Id. at 810.) Later in the 3 note, Dr. VanderPluym added: “From an acute treatment standpoint, I have advised 4 [Plaintiff] to trial the frovatriptan even though she does not believe that her current 5 headaches are her full-blown migraine with aura.” (Id. at 812.) Dr. Saperstein, too, 6 recommended in July 2020 that Plaintiff take triptan to treat her migraines and “reassured 7 her” when she raised concerns about potential side effects. (Id. at 1843.) 8 Separately, in August 2017, a different doctor (Dr. Lokale) offered Plaintiff a 9 different prescription drug for her migraines: “prescribe[d] topiramate 25mg a day for one 10 week then increase to 25 mg twice a day.” (Id. at 1609.) More than a year later, in 11 December 2018, another doctor (Dr. Mohindra) recommended the same drug: “On the top 12 of her complaint list is migraine headaches. . . . I would recommend Topomax twice daily 13 for maintenance of migraine headaches.” (Id. at 1542.)6 Nevertheless, during a subsequent 14 visit with a different doctor, Plaintiff admitted that she had failed to follow these 15 recommendations. (Id. at 1837 [April 2, 2020 medical note: “has not tried any migraine 16 prophylactic other than nortiptyline”].) 17 During the hearing, Plaintiff was asked a series of questions regarding her attempts 18 to take migraine medications. (Id. at 56-57.) Her answers can be summarized as follows: 19 (1) she was prescribed Sumatriptan for acute episodes, but she has only taken it once and 20 was advised “to be very careful” about taking it; (2) she was given “the Cefaly device” but 21 it “made them worse, so they just switched me to the Nerivio device,” which she hasn’t 22 tried yet; (3) she takes magnesium; (4) she was prescribed two drugs, “Aimovig and 23 Ajovy,” “recently this year” but both prescriptions were subsequently cancelled due to 24 concerns over side effects; and (5) she was subsequently prescribed Nexium, but “as of 25 yesterday, they’re holding off on that . . . [and] thinking droxibiltal.” (Id.) 26 Against this backdrop, it was permissible for the ALJ to discredit Plaintiff’s 27 symptom testimony based on her failure to follow migraine-related treatment 28 6 The ALJ clarifies that topiramate and Topomax are the same thing. (AR at 19.) 1 recommendations. The Ninth Circuit has “long held that, in assessing a claimant’s 2 credibility, the ALJ may properly rely on unexplained or inadequately explained failure to 3 seek treatment or to follow a prescribed course of treatment. According to agency rules, 4 the individual’s statements may be less credible if the level or frequency of treatment is 5 inconsistent with the level of complaints, or if the medical reports or records show that the 6 individual is not following the treatment as prescribed and there are no good reasons for 7 this failure. Moreover, a claimant’s failure to assert a good reason for not seeking 8 treatment, or a finding by the ALJ that the proffered reason is not believable, can cast doubt 9 on the sincerity of the claimant's pain testimony.” Molina v. Astrue, 674 F.3d 1104, 1113- 10 14 (9th Cir. 2012) (cleaned up). See also Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) 11 (“There must . . . be some types of evidence capable of being introduced at a hearing on 12 which an ALJ can rely to find a pain allegation incredible. . . . [One] such form of evidence 13 is an unexplained, or inadequately explained, failure to seek treatment or follow a 14 prescribed course of treatment. While there are any number of good reasons for not doing 15 so, a claimant’s failure to assert one, or a finding by the ALJ that the proffered reason is 16 not believable, can cast doubt on the sincerity of the claimant’s pain testimony.”) (citations 17 omitted). 18 Here, there is evidence that Plaintiff failed to follow at least two different 19 recommended courses of treatment: (1) Dr. VanderPluym’s recommendation to take 20 frovatriptan, which was first made in December 2016 and repeated in July 2017 (and then 21 reiterated by Dr. Saperstein in July 2020); and (2) the separate recommendations by Dr. 22 Lokale (August 2017) and Dr. Mohindra (December 2018) to take topiramate/ Topomax. 23 Additionally, Plaintiff has not identified any reason—let alone a good reason—for failing 24 to follow these recommendations. Although Plaintiff testified during the hearing that she 25 had stopped taking and/or been advised not to take certain other migraine medications 26 (Cefaly, Aimovig, and Ajovy) due to actual and/or potential side effects, she offered no 27 testimony to that effect with respect to the recommendations to take frovatriptan and 28 topiramate/Topomax. Thus, the ALJ was entitled to discredit her testimony based on her 1 unjustified failure to follow treatment recommendations. This determination, in turns, 2 makes it unnecessary to review the sufficiency of the ALJ’s additional reasons for 3 discrediting Plaintiff’s symptom testimony. Carmickle, 533 F.3d at 1162-63. 4 D. Credit-As-True 5 Plaintiff asks the Court to apply the credit-as-true rule, which would result in a 6 remand for calculation of benefits rather than for further proceedings. (Doc. 17 at 24-25.) 7 The credit-as-true rule determines whether a case should be remanded for benefits. 8 Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). It applies if each part of a three- 9 part test is satisfied. Id. First, the record must have been fully developed and further 10 administrative proceedings would serve no useful purpose. Id. Next, the ALJ must have 11 failed to provide sufficient reasons for rejecting the claimant’s testimony or medical 12 opinions. Id. Finally, if the improperly discredited evidence were credited as true, the ALJ 13 would be required to find the claimant disabled. Id. Even if all elements of the credit-as- 14 true rule are met, the Court maintains “flexibility to remand for further proceedings when 15 the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled 16 within the meaning of the Social Security Act.” Id. at 1021. 17 In this case, the ordinary remand rule applies. Further proceedings would be useful 18 to enable to ALJ to address, in more detail, whether there is a valid basis for rejecting NP 19 Lunda’s opinions. The Court notes that it would reach the same conclusion even if Plaintiff 20 had established the existence of reversible error with respect to the ALJ’s evaluation of Dr. 21 Saperstein’s opinions—any error stemming from a failure to provide a sufficiently detailed 22 explanation, or to identify supporting evidence in the record, could be addressed through 23 further proceedings. 24 … 25 … 26 … 27 … 28 … 1 IT IS THEREFORE ORDERED that the decision of the Commissioner of Social 2|| Security is reversed and remanded for further proceedings. The Clerk is directed to || enter judgment accordingly. 4 Dated this 16th day of August, 2022. 5 6 fm ee” 7 f t _o—— Dominic W. Lanza 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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